Can legislation intended to stop people fighting for ISIL/ISIS/IS/Daesh instead stop people fighting against ISIL/ISIS/IS/Daesh?

The whole question of when the State should be able to step in to stop people going overseas to act on their moral principles - in particular, by fighting for them - is a quite fraught one. As I wrote here;

My test as to whether that law is acceptable will be this: would it have stopped members of the International Brigade (which included a number of New Zealanders) from fighting in the Spanish Civil War, or returning to New Zealand having done so? If the answer is "yes", then I think we will have a problem.

Or, as Wayne Mapp noted in the comments to that post;

[Joining ISIL/ISIS/IS/Daesh] is different to the 80 year old case of joining the International Brigade in support of a legitimate government, or the much more prevalent cases of New Zealanders joinining the Croation armed forces in the 1990s. Interesting that people refer to the 80 year old case, but have forgotten (or never relaised that it occurred) the much more recent cases, where there are quite a number of people in New Zealand who did just that. Perhaps they have yet to write the appropriate books.

Anyway, when the Countering Terrorist Fighters Legislation Bill came before the House, it looked to me like it passed this aspect of my test. Yes, it extends the length of time that passports could be cancelled for (as well as introduces a new 10-day suspension of passport power), as well as allow other travel documents to be cancelled, while clarifying that the passports of New Zealanders already overseas may be cancelled. But the threshold for such cancellation - that its the only way to stop a person from participating in or facilitating a "terrorist act" - was not changed. So, I assumed, the cancellation powers could not be used against a person who plans to go overseas to fight for the "good guys" against the "bad guys".

Things appear to be a little more complicated than that, however. Because on Saturday, Attorney-General Chris Finlayson went on TVNZ's Q&A and told Corin Dann this:

"We do not want any New Zealanders getting caught up in this mess in the Middle East. It is very dangerous whether they want to fight for the Kurds or want to fight for ISIL, it is best for them, and for this country, that they stay well clear of it."

This was news to me, but it turns out that it shouldn't have been. Here's what he told Patrick Gower in mid-November:

PG: So a Kurdish person who’s fighting essentially on the same side as what New Zealand is helping, against IS, would be prosecuted, would have their passport stripped?

CF: Well, I’m sure this question’s arisen in the past, going way back to the Spanish Civil War, when people went off and fought on particular sides. We say it’s inadvisable for New Zealanders of their own volition to go and get involved in this kind of activity. They should stay put and leave it to ordinary forces to do what needs—

PG: But some of those Spanish Civil War people were heroes.

CF: Yeah, but in a world of complexity, like in the Middle East, what we don’t want are people getting on their steeds and riding off into the sunset to save populations. Leave it to conventional forces to deal with these matters.

Now, I should note there's an element of ambiguity here. While Chris Finlayson was being questioned about the State's ability to use its legal powers to prevent New Zealanders from traveling to fight in the Middle East, it may be that he's simply speaking in terms of moral suasion. In other words, he may simply be saying that "it's inadvisable" and "dangerous" for Kiwis to go and fight against ISIL/ISIS/IS/Daesh - but the State can't stop you if you really want to. Which is possibly wise advice, although I would note that Kiwis are forever going overseas to do inadvisable and dangerous things like climb mountains, fly gliders, motorcycle on mountain roads, and the like.

However, the more natural interpretation of Chris FInalyson's words are that the powers contained in the Countering Terrorist Fighters Legislation Bill can be used to not only stop people intending to link up with ISIL/ISIS/IS/Daesh, but also those intending to combat them. People like, for instance, these two Englishmen. That certainly is the way that the Labour Party has taken his statements, as they are demanding that the matter be clarified before the legislation is enacted.

Having looked at this a bit more, I'm still not 100% certain what the legal position is. As I wrote in this post (written before the Countering Terrorist Fighters Legislation Bill was introduced to the House, but the legislative language is the same), the grounds for cancelling a passport are reasonably narrow:

... the Minister must believe on reasonable grounds three things:

That the individual concerned is a danger to NZ's national security because he or she intends to engage in or facilitate a "terrorist act" (there are a couple of other sorts of actions mentioned, but this is the only one relevant to the current discussion);

That there's no other way to stop the individual doing this; and,

Cancelling the passport will stop them doing it.

Working out what constitutes a "terrorist act" then involves a bit of hopping between different statutes, but the end result is that in order to cancel a passport;

...the Minister must believe on reasonable grounds that the person's intention in going to Syria [or elsewhere] is to carry out actions there that involve causing death or serious bodily injury to people other than the Syrian armed forces (or the armed forces of other factions in the conflict), or to "facilitate" such actions. Because it is only such actions that are "terrorist acts" in the Syria [or elsewhere] context, and only an intent to commit or facilitate terrorist acts will do to cancel a passport.

Now, all I have to work on is what the MSM is saying about the events in Iraq/Syria, but from those reports there's no real evidence that the Kurdish fighters against ISIL/ISIS/IS/Daesh are committing any actions in the course of that fighting that qualify as "terrorist acts" under our legislation. Their role appears to be simply fighting off attacks by ISIL/ISIS/IS/Daesh on civilian population centers. It may be that these reports are slanted/biased (the enemy of my enemy is my friend, and all that), and maybe the SIS knows a lot more about what actually is happening in that conflict than the papers print, but I don't know what I can't know.

So if it is the case that the Kurdish fighters aren't committing any terrorist acts in combating ISIL/ISIS/IS/Daesh, then how on earth can Chris Finlayson think that New Zealand law (which only permits taking away passports to stop terrorist acts) applies? Well, here's where things get tricky. Because the main Kurdish grouping involved in anti-ISIL/ISIS/IS/Daesh activities is the PKK. And according to a bunch of different countries (although, it should be noted, not the United Nations), the PKK is a "terrorist organisation". And New Zealand, it so happens, is one of the countries that calls them this - we "designated" the PKK as a terrorist organisation in 2010, and renewed that designation in 2013 due to evidence of its attacks on civilians in Turkey.

Which then creates this question. Does fighting for an organisation that has carried out terrorist attacks against one enemy (and so is a designated terrorist organisation) automatically "facilitate" terrorist acts in terms of the legislation, even when the fighting you want to engage in involves no "terrorist acts" and (indeed) is against a different enemy who is using terrorist tactics?

As I say, I'm not 100% certain of the answer to that ... but I'd say there's a very strong argument that the answer is "no", meaning that no matter how inadvisable or dangerous fighting against ISIL/ISIS/IS/Daesh may be, the State can't stop you going to do it.

[Update: And in the time it took me to write the above, the Bill has gone back before the House, with Chris Finlayson opening the second reading debate thus:

As I said, in order to have a passport cancellation occur, the Minister must be satisfied that the person intends to engage in or facilitate a terrorist act. That is the core concept to which all these provisions apply. There are a number of difficulties posed by any suggestion we amend the definition of “terrorist act” to exempt, for example, a person returning to Kurdistan to fight the Islamic State of Iraq and the Levant (ISIL).

First, as I have said, the bill targets terrorist acts. We do not want to equivocate on that matter. We do not want New Zealanders getting caught up in this conflict in general, and we would not want any New Zealander committing any terrorist act on any side.

Secondly, the passport cancellation system is a system under ministerial control. It requires ministerial discretion. The Minister will have to take a number of factors into account when making a decision.

Thirdly, amending the definition of “terrorist act” in the way proposed could put the Minister making a decision regarding a passport cancellation in the difficult position of having to assess who is fighting for whom. That may be a more straightforward task when one considers ISIL and the Kurds, but this is a chaotic and fast-developing situation. The distinction may not be so clear when considering individual areas of Syria.

I do not think we want a Minister having to decide whether an intended terrorist act may be excusable in the circumstances or not, making specific legislative carve-outs in the Terrorism Suppression Act. I think that would undermine the purpose of the legislation, but it could also create a dangerous precedent.

The main point is we do not want New Zealanders getting involved.

Which, to me, makes it sound like he's admitting that going to fight for the PKK against ISIL/ISIS/IS/Daesh will not, in itself, be grounds for cancelling a passport (although he really would rather people didn't do so).]